Analysis underlying the Commissioner's 'Concluding statement — Centrelink release of personal information'
Dear Office of the Australian Information Commissioner,
I would like a copy of the records of the OAIC's inquiries with the Department of Human Services in response to media reports that Centrelink had released personal information into the public domain, as referred to in this media release: https://www.oaic.gov.au/media-and-speech...
In particular, I would like copies of any analysis, including email, memos, policy papers, file notes or similar, setting out the reasoning for the Commissioner's view that Centrelink's disclosure of personal information about Andie Fox to the media was permitted by APP 6.2(a)(ii).
I would also like a copy of any submissions made to the OAIC by Centrelink or the Department of Human Services in relation to this matter.
Please consider this a request for administrative access in the first instance. If that is not possible, please consider this a request under Part III of the FOI Act.
Yours faithfully,
Ned Caractacus
Dear Mr Caractacus
Freedom of Information request
I refer to your request for access to documents, received by the Office of
the Australian Information Commissioner (OAIC) on 4 June 2018.
You asked that your request be treated as a request for administrative
access in the first instance, and if that is not possible, for it to be
treated as a request under Part III of the Freedom of Information Act 1982
(FOI Act).
The OAIC will treat your request as a request made under the FOI Act.
Scope of your request
You sought access to documents relating to the Acting Information Commissioner
and Acting Privacy Commissioner’s conclusion that Centrelink’s disclosure of
personal information about Andie Fox was permitted by APP 6.2(a)(ii). In
particular you sought access to:
… records of the OAIC's inquiries with the Department of Human Services in
response to media reports that Centrelink had released personal information into
the public domain …
In particular, I would like copies of any analysis, including email, memos,
policy papers, file notes or similar, setting out the reasoning for the
Commissioner's view that Centrelink's disclosure of personal information about
Andie Fox to the media was permitted by APP 6.2(a)(ii).
I would also like a copy of any submissions made to the OAIC by Centrelink or
the Department of Human Services in relation to this matter.
Timeframes for dealing with your request
Section 15 of the FOI Act requires this office to process your request no
later than 30 days after the day we receive it.
We received your request on 4 June 2018 and therefore must process it by
Wednesday 4 July 2018.
Section 15(6) of the FOI Act allows us a further 30 days if we need to
consult with third parties about certain information, such as business
documents or documents affecting their personal privacy. We will advise
you if this is necessary.
Disclosure Log
Documents released under the FOI Act may be published online on our
disclosure log, unless they contain personal or business information that
it would be unreasonable to publish.
If you would like to discuss this matter please contact me on (02) 9284
9802 during business hours or by email to [1][email address].
Regards
Raewyn Harlock | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001 | [2]www.oaic.gov.au
Phone: +61 2 9284 9802 | Email: [3][email address]
Protecting information rights – advancing information policy
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Dear Mr Caractacus
Freedom of information request no. FOIREQ18/00066
I refer to your request, made under the Freedom of Information Act 1982
(FOI Act) and received by the Office of the Australian Information
Commissioner (OAIC) on 4 June 2018.
Because your request covers documents containing information concerning an
organisation’s business or professional affairs and personal information,
the OAIC is required to consult the individuals and organisations under ss
27 and 27A of the FOI Act before making a decision on release of the
documents.
For this reason, the period for processing your request has been extended
by 30 days to allow time to consult (see s 15(6) of the FOI Act). The
processing period for your request will now end on 3 August 2018.
The consultation mechanisms under ss 27 and 27A apply when we believe the
person or organisation concerned may wish to contend that the requested
documents are exempt for reasons of personal privacy or may adversely
affect their business or financial affairs. We will take into account any
comments we receive but the final decision about whether to grant you
access to the documents you requested rests with the office of the OAIC.
At this time we do not have your permission to release your name to any
person or business we consult. Please advise if you consent to your name
being disclosed during consultation.
Yours sincerely
Caren Whip | Principal Lawyer | Legal Services|
Office of the Australian Information Commissioner |
GPO Box 5218 SYDNEY NSW 2001 |[1]www.oaic.gov.au|
Phone: +61 2 9284 9826 | Enquiries: 1300 363 992 | Fax: +61 2 9284 9666 |
Email: [2][email address]
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Dear Ms Whip,
Thank you for your email. I note that you are consulting with DHS/Centrelink regarding the second part of my request, namely "submissions made to the OAIC by Centrelink or the Department of Human Services in relation to this matter", and you are entitled under the Act to additional time to do so.
However, the first part of my request ("copies of any analysis, including email, memos, policy papers, file notes or similar, setting out the reasoning for the Commissioner's view that Centrelink's disclosure of personal information about Andie Fox to the media was permitted by APP 6.2(a)(ii)") should be comprised of OAIC documents, and should not require consultation with a third party to release.
I ask that you treat these two parts as separate requests. This should enable you to provide the OAIC's analysis immediately, while we await the conclusion of your consultation with DHS in respect of any DHS or Centrelink submissions (which I note should be completed by 4 August).
Yours sincerely,
Ned Caractacus
Ned Caractacus left an annotation ()
Stephanie is quite right - I have made an assumption about whom the OAIC is consulting, and for the reasons she states I was probably incorrect. I don't think there's much point in my clarifying. Likely, by the time the OAIC responds we will have hit or nearly the 4 August deadline and it will be a moot point.
Dear Mr Caractacus
Please find attached the decision in relation to your FOI request,
FOIREQ18/00066.
Kind Regards
Caren Whip | Principal Lawyer| Legal Services|
Office of the Australian Information Commissioner |
GPO Box 5218 SYDNEY NSW 2001 |[1]www.oaic.gov.au|
Phone: +61 2 9284 9826 | Enquiries: 1300 363 992 | Fax: +61 2 9284 9666 |
Email: [2][email address]
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Our reference: FOIREQ18/00066
Dear Mr Caractacus
Freedom of Information request
I refer to your freedom of information request received on 4 June 2018 and
my decision of 3 August 2018. Please see attached documents.
Regards
Cate Cloudsdale | Senior Lawyer | Legal Services
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5218 SYDNEY NSW 2001| [1]www.oaic.gov.au
Phone: +61 2 8231 4249 | E-mail: [2][email address]
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Ned Caractacus left an annotation ()
There's only one document in this that's actually useful - the letter from the acting Commissioner to the Department of Human Services dated 23 May 2018. That letter does actually set out what I asked for - the analysis underlying the decision. I don't think that analysis is very satisfying but I will leave it to people with more expertise to analyse the legalities.
Julie left an annotation ()
There is a certain amount of surrealness that the OAIC has used s 47F Public interest conditional exemptions-personal privacy redactions on the released documents, such that publicly available documents (which have been published to the public at large), have had those public details redacted.
Use of s 47F redaction is inappropriate and rather ridiculous here as it does not involve any unreasonable disclosure of personal information about any person, and was based on the delegate assuming rather erroneously that the person’s who information was redacted would have not wished it to be provided, and not on any actual consultation at all (it is very unlikely indeed, for example, that a journalist who provided his photo and name for the byline of a published news article, would consider that an unreasonable disclosure of his personal information, as he has provided it with consent to be published by his employer, to the world at large).
Under s 47F, the delegate MUST consider before redaction:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters relevant.
In this release, which consists of a number of published news articles predominately, the delegate has redacted the names and photos of persons included in that article. Under s 47(2)(a), s 47(2)(b), and s 47(2)(c), the fact this personal information was part of articles in a major daily newspaper, published to the word, should have highlighted to the delegate that s 47F could not apply to this information, especially given the delegate never actually consulted the persons whose information in these articles was redacted, but rather assumed what their views might be (and those assumptions were clearly ridiculous).
Of course, if the OAIC was as stringently pro-privacy in other aspects (where it counts), this might pass unremarked, but the OAIC gave not only the all clear to DHS and Tudge on the robodebt defamation of a critic on the grounds of “correcting the record” (despite the information leaked having little to do with robodebt at all) but also recently issued a determination that stated government agencies could similarly use the same tactics via the Public Service Act as the OAIC deemed it authorised Departments and Ministers to “correct the record” (or more accurately put, attack critics via leaking of their sensitive personal info held by government) with sludge sheets (despite nothing in the Public Service Act actually using those words or really giving that authorisation, beyond an extremely convoluted and tortured inference dreamed up by the OAIC).
It’s getting rather ridiculous that the OAIC is now redacting public news articles, for the benefit of agencies.
Julie left an annotation ()
Dear Ned,
As this FOI had documents excluded in the FOI decision, it should be marked “Partially Successful” rather than “Successful”.
“Successful” should only be used where all documents identified in scope are provided.
Sincerely
Verity
Stephanie Johnson left an annotation ()
Ned,
The OAIC has not actually said that it is consulting with Centrelink/DHS.
There are any number of third parties, including Ms Fox herself, that the OAIC may be consulting with about the material you have asked for, including their summaries and assessments.
Also, section 27 and 27A of the FOI Act do not allow the OAIC to have additional time for consulting with other Commonwealth government bodies. So that suggests the consultation is not with Centrelink/DHS, and could in fact be in relation to what you consider the first part of your request.
Good luck.
Steph